RIFAGComplaintLetter092009

Complaint to Attorney General of California for prosecution crimes by judges and county government officials who have failed to disclose illegal payment of public funds involved in litigation before the courts.

Dear Sir: Please consider this a formal complaint requesting the prosecution of Los Angeles County Superior Court Judge David P. Yaffe and the members of the LA County Board of Supervisors, in particular, and all other superior court judges and county supervisors who have, respectively, received and authorized “benefits provided to a judge under official action of a governmental entity” for violation of the California Penal Code sections prohibiting “misappropriation of funds” (§ 424), “bribery” (§§ 92-94) and “obstruction of justice” (§§ 146(a) and 153), amongst others. Prosecution is also sought against all judges who have received any “supplemental benefit payments” from any county since May 21, 2009, and all county officials who have authorized the appropriation of such payments. Request is further made for your office to seek to reopen any case that has been decided by or presided over by any judge who has received immunity for criminal acts under Senate Bill SBX2-11 or who has received payments from any county since May 21, 2009, due to the “integrity of the court” having been compromised by the judge having received such criminal payments from a county. I. History

As you are aware, LA County Superior Court judges have been receiving supplemental payments from LA County, in addition to their state salaries and benefits, since the late 1980s. In October 2008, the California Court of Appeals decided the case of Sturgeon v. County of Los Angeles (167 Cal.App.4th 630 (2008), review denied December 23, 2009). Sturgeon held that the “judicial benefits” paid by LA County to LA Superior Court judges was “compensation” and, as such, violated Article VI, Section 19, of the California Constitution. Such Article states in relevant part that only the state legislature can “prescribe” the compensation of the judges. The Court confirmed that this was a “non-delegable duty” which could not be undertaken by counties.

In response to the Sturgeon decision, the Administrative Office of the Judicial Council of California drafted Senate Bill SBX2-11. (The history of the bill shows such drafting.) The bill, sponsored by Senate President Pro Tem Darrell Steinberg, was introduced as part of the budget process on February 11, 2009, passed by the State Senate on February 14, 2009, passed by the State Assembly on February 15, 2009, and signed by the Governor on February 20, 2009. The Bill became effective on May 21, 2009. The first Section of Senate Bill SBX2-11 continued the county benefits to judges as follows: “Judges of a court whose judges received judicial benefits provided by the county or court or both, as of July 2008, shall continue to receive supplemental benefits from the county or court then paying the benefits on the same terms and conditions as were in effect on that date.” The second Section provided for the termination of the benefits with 180 days’ notice to the administrative director of the Courts and the “impacted judge”, but precluded termination while the judge remained in office in that court. The last Section of Senate Bill SBX2-11 recognized that the county benefits violated the criminal law by giving retroactive immunity to the judges and government employees for past violations. The immunity does not extend, however, to the current payments. Such paragraph states as follows: “Notwithstanding any other law, no governmental entity, or officer or employer of a governmental entity, shall incur any liability or be subject to any prosecution of any disciplinary action because of benefits provided to a judge under the official action of a governmental entity prior to the effective date of this act on the ground that those benefits were not authorized under law.” As shown above, the immunity was limited to actions “prior to the effective date of this act” (May 21, 2009). No immunity exists for the current “benefits provided to a judge under the official action of a governmental entity … on the ground that those benefits were not authorized by law.” The Penal Codes which are being and have repeatedly been violated are: (a) misappropriation of funds (§ 424), (b) bribery (§§ 92-94), and (c) obstruction of justice (§§ 146(a) and 153), amongst others. (In People v. Sperl (54 Cal.App.3rd 640 (1976)), for example, the Court of Appeals held that a county marshal was properly convicted of misappropriation of public money within the meaning of Penal Code § 424 after he used deputies and county vehicles in conducting non-county business.)

Edmund G. Brown, Jr. Attorney General of California September 14, 2009 Page 3 Additionally, the due process clauses of the Fourteenth Amendment to the U.S. Constitution and to the California Constitution have been violated. U.S. Supreme Court cases have long and consistently held that: it is a violation of due process for a judge to preside over a case when his campaign committee had received a significant contribution from the party who later appeared before him after he won the election (see Caperton v. A.T. Massey Coal Co., Inc., 566 U.S. ___ (2009) decided June 8, 2009). It is a violation of due process for a judge to preside over cases where the fines or fees he imposes go to the city treasury and are used to supplement his salary, and also because of his interest in helping the city as its mayor (see Tumey v. Ohio, 273 U.S. 510 (1927) – due process clause incorporated the common law rule that a judge must recuse himself when he has “a direct personal substantial pecuniary interest” in a case. Page 523, Caperton, Slip Opinion page 6); it was a violation of due process for a mayor to preside over cases as a judge without a salary and without any payment because the fines and penalties he imposed went into the town’s “Fisc.”. (See Ward v. Monroeville, 409 U.S. 57 (1972) – the mayor’s “executive responsibilities for village finances may make him partisan to maintain the high level of contribution (to these finances] from the mayor’s court”. Page 60, Caperton, Slip Opinion page 8); it was a violation of due process for an administrative board composed of optometrists to preside over the case of a competitive optometrist. (See Gibson v. Berryhill, 411 U.S. 564, 579 (1973); it was a violation of due process for an Alabama Supreme Court Justice to uphold a bad faith damage award against an insurance company’s refusal to pay a claim when he was the lead plaintiff in a nearly identical lawsuit in Alabama’s lower courts. (See Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1975), Caperton Slip Opinion page 8), and it was a violation of due process for a judge to judge his own actions. (See In Re Murchison , 349 U.S. 133, 136 (1955) – the court recited the general rule that “no man can be a judge in his own case”, adding that “no man can be permitted to try cases where he has an interest in the outcome”. Page 136, Caperton Slip Opinion page 10); and it was a violation of due process for a judge who was criticized to preside over the contempt proceedings of the “contemnor”. (See Mayberry v. Pennsylvania, 400 U.S. 455,466 (1971) – “that by reason of the due process clause of the Fourteenth Amendment a defendant in a criminal proceeding should be given a public trial before a judge other than the one reviled by the contemnor”. Page 466, Caperton Slip Opinion page 10). The California state court judges are bound to follow the U.S. Constitution and the laws of the United States pursuant to Article VI, Clause 2, of the U.S. Constitution, which states: “This constitution, and the laws of the United states which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges of every state shall be bund thereby, anything in the constitutions or laws of any state to the contrary notwithstanding.” Further, under the laws of the United States, violations of the intangible right to honest services under 18 U.S.C. §§ 1341, 1343 and 1346 have occurred. Section 1346, in particular, clarifies as follows: “For the purposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.”

In his testimony on December 22, 2008, Judge Yaffe testified that he received payments from LA County, that he did not report such on his Form 700 financial disclosure form, that he did not have any employment contract or employment arrangement with LA County and that other than his decision regarding “dirt” in the case of Marina Strand Colony II Homeowners Association v. County of Los Angeles, LASC Case No. BS109420 (the “Marina Strand” case), he did not remember any case in the last five (5) years in which he made a decision against LA County. (See Reporter’s Transcript dated December 22, 2008, Marina Strand case contempt proceedings.) The payments in the Marina Strand case showed that the managing partners of the real parties in interest, Del Rey Shores Joint Venture and Del Rey Shores Joint Venture North (“Del Rey Shores”) had contributed to the campaigns of LA County Supervisors Mike Antonovich and Don Knabe six weeks before they voted to approve a joint application for an Environment Impact Report (“EIR”) by LA County and Del Rey Shores. These contributions made the votes illegal under the California Political Reform Act, and made the approval illegal under BreakZone Billiards v. City of Torrance (81 Cal.App.4th 1205 (2000)). Marina Strand Colony II Homeowners Association filed a petition for writ of mandate in the LA Superior Court. The petition sought to enjoin the EIR under the California Public Resources Code. The case was assigned to Judge Yaffe. Judge Yaffe did not recuse himself despite his obligation to do so under Canon 2 of the California Code of Judicial Ethics, which is clear in its requirement that a judge “shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.” Other violated Canons include Canon 3B(5), Canon3E, Canon 4A, Canon 4D(1)(4) and (5), and Canon 5B. During the course of the case, Judge Yaffe entered an order on January 8, 2008, for Marina Strand’s former counsel to pay attorney’s fees and costs to LA County and Del Rey Shores. Such order was entered without notice to me, the former attorney, without my presence at the hearing, and in violation of the Public Resources Code. Thereafter I specially appeared and disqualified Judge Yaffe. Judge Yaffe refused to obey the disqualification and commenced a contempt proceeding against me, ultimately holding me in contempt for refusing to answer questions about my assets in a judgment debtor proceeding to enforce the order to pay attorney’s fees. I’ve filed a petition for writ of habeas corpus which is presently in the Ninth Circuit Court of Appeals on the issue of whether Judge Yaffe should have recused himself. The Sheriff of LA County, Leroy D. Baca, did not answer the Petition. The LA Superior Court and Judge Yaffe did not oppose or contest any ground, fact or claim in the Petition. Nor did anyone oppose my motion to be released from incarceration on the ground that I will prevail on the appeal.

The Sturgeon case showed that LA County Superior Court judges were receiving $46,300 per year in supplementary benefits in addition to their state salary of $178,800 per year, and their state health and retirement benefits. As of May 21, 2009, Judge Yaffe and LA County Superior Court judges were still receiving the $46,300 per year from LA County. Starting with FY 2009-2010, they will receive approximately $57,000, which will cost the LA County taxpayers approximately $30 million per year. (See “Trial Court Funding” in LA County Budget.)

III.

The Original Reason For The Supplemental Benefits Was A “Pretext” To “Influence” LA Superior Court Judges To Decide Cases In The County’s Favor.

The Sturgeon case found that the reason for the LA County’s payments to the LA Superior Court judges was “to attract and retain qualified judges to sit in this [LA] county”. The reason was set forth in the November 10, 1988, memorandum from the LA County Counsel to Frank Zolin, the Clerk of the LA County Superior Court. The reason was a “pretext”. The judges are elected. Thus a payment by LA County directly to the judges can neither “attract” or “retain” them. It can only “bribe” them. And a review of the County’s annual litigation cost management reports will show the County got what it paid for. IV. Conclusion

Effectively, judges issue orders or fines or penalties that benefit LA County, which pays for the judges’ supplemental benefit (and saves the County tens of millions or more in litigation costs). This is the perfect example of the Tumey case. It is also a continuing misappropriation of funds, bribery and obstruction of justice on a massive scale. Here, Judge Yaffe, by taking the LA County payments, and the LA County Supervisors, by giving the payments, admittedly engaged in all of the acts.

Edmund G. Brown, Jr. Attorney General of California September 14, 2009 Page 6 The same is true for all of the judges and all of the supervisors. I was the first lawyer to expose this practice by bringing Federal civil rights cases against LA County and the LA Superior Court judges regarding the LA County payments. I was disbarred as a result. The Ninth Circuit has now linked my disbarment with the recusal issue. The question of the legality of my disbarment is presently before the U.S. Supreme Court (Case No. 08-1573), and my Petition for Writ of Certiorari is unopposed. Inasmuch as the Legislature has already determined that criminal conduct has occurred, there is no question that those involved must be charged. And the longer the delay, the greater the damage that will continue to accrue to citizens. A strong prosecution will stop the practice statewide. Given that this is a particularly political case, a special prosecutor might be best able to work with a state Grand Jury to protect and insulate the integrity of the prosecution from the many-tentacled corrupted forces that will come to bear. As the present Attorney General, and possible future Governor, of this great state, this situation requires your immediate attention. The due process rights of LA County’s eleven million citizens have callously been trampled for over twenty years, and over $300 million dollars have been stolen from us by those we’ve been encouraged to believe are the most trustworthy, all to the great and continuing personal detriment of many, and to the shame of non-corrupt judges in the state and across the land. If your office is unable to immediately address what is most likely the largest criminal enterprise in California history (we estimate over 215,000 felonies have been committed in connection with the giving and taking of “bribes” alone), we will have no choice but to pursue all other remedies available in the very near future. Please understand and know with conviction that we will do absolutely everything within our poor power to prevent this virus of blatant corruption from spreading further. Sincerely,

RICHARD I. FINE RIF/mlm Enclosure: SBX2-11

Senate Bill No. 11
CHAPTER 9 An act to add Sections 68220, 68221, and 68222 to the Government Code, relating to judges.
[Approved by Governor February 20, 2009. Filed with Secretary of State February 20, 2009.]

LEGISLATIVE COUNSEL’S DIGEST

SB 11, Steinberg. Judges: employment benefits. The California Constitution requires the Legislature to prescribe compensation for judges of courts of record. Existing law authorizes a county to deem judges and court employees as county employees for purposes of providing employment benefits. These provisions were held unconstitutional as an impermissible delegation of the obligation of the Legislature to prescribe the compensation of judges of courts of record. This bill would provide that judges who received supplemental judicial benefits provided by a county or court, or both, as of July 1, 2008, shall continue to receive supplemental benefits from the county or court then paying the benefits on the same terms and conditions as were in effect on that date. The bill would authorize a county to terminate its obligation to provide benefits upon providing 180 days’ written notice to the Administrative Director of the Courts and the impacted judges, but that termination would not be effective as to any judge during his or her current term while that judge continues to serve as a judge in that court or, at the election of the county, when that judge leaves office. The bill also would authorize the county to elect to provide benefits for all judges in that county. The bill would require the Judicial Council to report to the Senate Committee on Budget and Fiscal Review, the Assembly Committee on Budget, and both the Senate and Assembly Committees on Judiciary on or before December 31, 2009, analyzing the statewide benefits inconsistencies. This bill would provide that no governmental entity, or officer or employee of a governmental entity, shall incur any liability or be subject to prosecution or disciplinary action because of benefits provided to a judge under the official action of a governmental entity prior to the effective date of the bill on the ground that those benefits were not authorized under law. This bill would provide that nothing in its provisions shall require the Judicial Council to increase funding to a court for the purpose of paying judicial benefits or obligate the state or the Judicial Council to pay for benefits previously provided by the county, city and county, or the court.

The people of the State of California do enact as follows: SECTION 1. The Legislature finds and declares all of the following: (a) It is the intent of the Legislature to address the decision of the Court of Appeal in Sturgeon v. County of Los Angeles (2008) 167 Cal.App.4th 630, regarding county-provided benefits for judges. (b) These county-provided benefits were considered by the Legislature in enacting the Lockyer-Isenberg Trial Court Funding Act of 1997, in which counties could receive a reduction in the county’s maintenance of effort obligations if counties elected to provide benefits pursuant to paragraph (l) of subdivision (c) of Section 77201 of the Government Code for trial court judges of that county.

(c) Numerous counties and courts established local or court supplemental benefits to retain qualified applicants for judicial office, and trial court judges relied upon the existence of these longstanding supplemental benefits provided by the counties or the court. SEC. 2. Section 68220 is added to the Government Code, to read: 68220. (a) Judges of a court whose judges received supplemental judicial benefits provided by the county or court, or both, as of July 1, 2008, shall continue to receive supplemental benefits from the county or court then paying the benefits on the same terms and conditions as were in effect on that date. (b) A county may terminate its obligation to provide benefits under this section upon providing the Administrative Director of the Courts and the impacted judges with 180 days’ written notice. The termination shall not be effective as to any judge during his or her current term while that judge continues to serve as a judge in that court or, at the election of the county, when that judge leaves office. The county is also authorized to elect to provide benefits for all judges in the county. SEC. 3. Section 68221 is added to the Government Code, to read: 68221. To clarify ambiguities and inconsistencies in terms with regard to judges and justices and to ensure uniformity statewide, the following shall apply for purposes of Sections 68220 to 68222, inclusive: (a) “Benefits” and “benefit” shall include federally regulated benefits, as described in Section 71627, and deferred compensation plan benefits, such as 401(k) and 457 plans, as described in Section 71628, and may also include professional development allowances. (b) “Salary” and “compensation” shall have the meaning as set forth in Section 1241. SEC. 4. Section 68222 is added to the Government Code, to read: 68222. Nothing in this act shall require the Judicial Council to increase funding to a court for the purpose of paying judicial benefits or obligate the state or the Judicial Council to pay for benefits previously provided by the county, city and county, or the court. SEC. 5. Notwithstanding any other law, no governmental entity, or officer or employee of a governmental entity, shall incur any liability or be subject to prosecution or disciplinary action because of benefits provided to a judge under the official action of a governmental entity prior to the effective date of this act on the ground that those benefits were not authorized under law. SEC. 6. The Judicial Council shall report to the Senate Committee on Budget and Fiscal Review, the Assembly Committee on Budget, and both the Senate and Assembly Committees on Judiciary on or before December 31, 2009, analyzing the statewide benefits inconsistencies. SEC. 7. The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.